On February 16, last year's bipartisan legislation governing the collection
of foreign intelligence and protecting from liability all persons who comply
with federal directives to assist in such collection--the law otherwise known
as the "Protect America Act of 2007"--expired, having exhausted its
six-month, 15-day statutory lifespan. At which time the federal government's
ability to pursue suspected terrorists and emerging threats was dealt a serious
blow. You can thank House Democrats for the whole sorry mess.
The Democratic leadership denies this, of course, having adopted an Alfred
E. Neuman "What, Me Worry?" approach to national security. The lack
of a new statute "does not, in reality, threaten the safety of
Americans," protests Senate majority leader Harry Reid. The Foreign
Intelligence Surveillance Act of 1978 still applies. Says Senator Richard
Durbin of Illinois, "The FISA law--even
if we do not change it--gives ample authority to this president to continue to
monitor the conversations of those who endanger the United States." Says House
Intelligence Committee chairman Silvestre Reyes: "We cannot allow
ourselves to be scared into suspending the Constitution." Democratic
national-security-adviser-in-waiting Richard Clarke writes that "FISA has
and still works as the most valuable mechanism for monitoring our
It is true that the wiretaps granted under the Protect America Act may be
continued for a year from their date of issue. If a wiretap was approved on
December 5, 2007, for example, it legally can remain in place until December 5,
2008. But any new wiretaps the government seeks will have to go through
stringent FISA procedures, which require the government to show "probable
cause" that a "U.S.
person" is a "foreign power" or an "agent of a foreign
power" before a search warrant targeting him can be issued. And this is
troubling because--pace Richard Clarke--the old FISA didn't and doesn't
Let's review what brought us to this impasse. Back in December 2005, the New
York Times reported that, "months after the Sept. 11 attacks,"
President Bush "secretly authorized" the National Security Agency
(NSA) to "eavesdrop on Americans and others inside the United States"
in order to gather intelligence "without the court-approved warrants
ordinarily required for domestic spying." Now, the NSA's Terrorist
Surveillance Program wasn't so secret, it turns out; select members of
Congress, Democratic and Republican, had been informed of its existence long
before the Times's blockbuster report, and none of them seemed to have
had a problem with it.
It turns out, further, that the NSA wasn't spying on Americans willy-nilly.
Most of the warrantless surveillance targets were foreign nationals located
overseas, though the program also surveilled the 500-odd people in the United States
with whom those overseas targets were communicating. Nor was it at all clear
whether or not FISA superseded the president's plenary, constitutional
authority to "protect and defend" the United States from attack. No court
has ever said so. And no administration, including Carter's and Clinton's, has
ever accepted FISA as determinative of its constitutional power.
But that didn't matter. Congressional Democrats called the program
"illegal." For a while, the president fought back, but 2005 turned
into 2006, the year the Democrats took Congress. The Bush administration was
weak. And so, for better or worse--okay, for worse--the president decided he
was no longer in a position to engage in a public assertion of executive authority.
The process was submitted to the authority of the FISA court and its 11
rotating judges. And it was only a matter of months before the system began to
The FISA court decided that calls or emails merely routed
through the United States
were, in fact, domestic communications falling under the "probable
cause" evidentiary standard. It didn't matter that the target and the
recipient of his communications might both be abroad--if the electrons zipped
across the United States,
as they often do in a globally networked world, then a warrant was required to
listen in. By the miracle of technology, Abu Omar and Mullah Mohamed in Pakistan could both be "U.S.
persons." Meanwhile, the ACLU and the tort bar filed lawsuits against the
telecommunication companies that had cooperated with the U.S. government
in the Terrorist Surveillance Program. Naturally, the telecoms, fearing that
they soon would be paying damages, grew wary of cooperation with the
government. And some of the FISA judges--the same folks often accused of
"rubberstamping" the executive's wishes--raised the bar that needed
to be met before counterterrorist surveillance could begin. Director of
National Intelligence Mike McConnell recently told Fox News Channel's Chris
Wallace that by summer 2007, "We were in extremis, because we had lost ...
about two-thirds of our [surveillance] capability."
It was this crisis that the Protect America Act addressed. It was by no
means a perfect bill. It expanded the FISA court's authority by allowing it to
retroactively review the surveillance programs--submitting national security
decisions to an unelected and unaccountable judiciary--and also by requiring
the president to disclose to the court on a regular basis the program's
activities. But the Protect America Act did contain two important provisions.
It formalized the administration's authority to conduct overseas wiretaps on
foreign nationals without court approval, and it granted immunity from further
lawsuits to the telecoms. Under the compromise, data collection could proceed
without too much trouble. Until said compromise expired on February 16.
That's the history.
It was not for lack of trying that the Protect America Act died earlier this
month. A bipartisan, two-to-one majority in the Senate voted for a new law that
would renew the act's provisions, provide retroactive immunity to the telecoms
that had participated in the Terrorist Surveillance Program, and even extend
FISA warrant requirements for overseas targets who are Americans, evidence of
the Bush administration's willingness to bend over backwards in search of a
compromise. A bipartisan majority in the House is ready to vote for this law.
No one disputes that these surveillance programs are necessary to prevent
terrorist attacks upon the United
At issue is the so-called "retroactive immunity." The House
Democratic leadership doesn't like it. Most of their arguments against
retroactive immunity aren't any more sophisticated than Senator Edward
Kennedy's disgusting assertion that President Bush is "willing to let
Americans die to protect the phone companies." But the crux of the
anti-immunity Democrats' argument seems to be that because the original
Terrorist Surveillance Program was "illegal" and the phone companies
were complicit in its "illegality," they therefore should be liable
for damages resulting from such "illegal" invasions of privacy.
This is wrong on all counts. The Terrorist Surveillance Program was not
illegal. And the telecoms were engaged in a good-faith effort to help the
federal government protect the United
States from attack. Isn't that how we should
want corporations to behave in a time of war?
In the end, the fight over retroactive immunity may be something of a
distraction. Even if the "more than 40" pending lawsuits we hear
about went to trial, we're guessing the government and the telecoms would
prevail. Just last week, the Supreme Court denied the ACLU's appeal of a Sixth
Circuit ruling that the group and its co-plaintiffs lacked standing to sue
because they could not prove harm. The Ninth Circuit last year ruled similarly
against an Islamic charity that alleged the NSA was listening to its
communications. No harm, no standing, no damages. It's unlikely the tort bar
would profit much.
But the Democrats' lawyer friends have already wreaked a lot of havoc. The
mere threat of such lawsuits is enough to make some phone companies think twice
about helping the government. And maybe that's the point. The fight over
retroactive immunity should be seen for what it is: a backdoor attempt to shut
down the president's post-9/11 intelligence gathering efforts and return the
intelligence community to a pre-9/11 footing, when the FISA court governed
almost all counterterrorist surveillance and the standards of traditional law
enforcement applied more often than not to investigations of suspected
That is why the ACLU's website wants you to "tell House leaders"
to "keep standing up to Bush" and thank Nancy Pelosi and Steny Hoyer
for "standing up" to Bush's "bullying" and letting
"his reckless and unconstitutional spying bill expire." That is why
the leftwing Center for American Progress accuses
Bush of "spouting fear" as Congress seeks to "rein in" his
"reckless disregard of the Constitution and the law." These folks
don't think the telecoms are the problem. They think any law that allows the
president to go beyond the writ of the FISA court is the problem.
And that's pernicious nonsense. Apolitical career types like McConnell, FBI
director Robert Mueller, and attorney general Michael Mukasey, along with
Democrats like Senate Intelligence Committee chairman Jay Rockefeller, agree on
this. It was fear of the FISA court, after all, that prevented Minnesota FBI
field agents from searching the laptop of al Qaeda terrorist Zacarias
Moussaoui--the suspicious student at the Pan Am International Flight Academy in
Eagan, Minnesota--even though they knew about Moussaoui's jihadist beliefs and
connection to a Chechen terrorist. That was the problem which the Terrorist
Surveillance Program was meant to address. It was the sort of problem that the
Protect America Act was meant to mitigate. But now we are returning to the
place from which we began.
Congress returns from recess this week. As we go to
press, Speaker Pelosi continues to indicate she will not allow a vote on the bipartisan
Senate surveillance bill. This demonstrates a fundamental lack of seriousness
about national security on the part of congressional Democrats. Newsflash: The United States
faces a persistent threat of attack from a terrorist organization with global
reach and the desire to massacre as many innocent people as possible. Do House
Democrats really want to make the terrorists' jobs any easier?